An order refusing to set aside an ex parte order is appealable under section 38 of the Delhi Rent Control Act.

( 1 ) HARISH Kumar and his brother applied in the Court of Rent Controller for the eviction- of Ram Kumar and his brother Ram Kishan on the grounds of (i) default in payment of rent, (ii sub-letting and ,iii) bona fide personal requirement. These pleas were controverted and it was added that Ram Kishan being the real brother of Ram Kumar, was living with him and there was no question of sub -tenarcy On September 9, 1960, claim against Ram Kishan was -given up and Ram Kumar being absent ex-parte evidence was led on the basis of which an order of eviction based on the ground of sub letting was passed against Ram Kumar

( 2 ) AN application for setting aside the ex Parte order was made by ham Kumar, but the same was dismissed in default. An application for restoration of that application was also dismissed in default on 17th January. 1962. The same day, a further application was made for restoration of the earlier application for restoration dismissed in default on 17th January, 1962 This later application was dismissed on the merits on 12th April, I 62 on the finding that no sufficient ground was shown for the absence of appearence on 1-th January 1962, when the case was called. An appeal against this order was dismissed by the Rent Control Tribunal on 1st December, 195: on the ground that no appeal lay under section 38 of the Delhi Rent Control Act as the impugned order was not one made under the provisions of the said Act. Reliance for this view was placed on a decision by Gosain, J. in South Asia Industries v. S. B -Sarup Singh.

( 3 ) IT is against this order that the present revision has been preferred, Sbri Shayam Kishore. the learned counsel for the respondents, has raised a pieliminary objection that in appeal lies against the impuged order under section 39 of the Delhi Kent Act and that the same is barred by time. No revision would in the circumstances be entertainable. On the merits also, it is contended that no explantion for absence on l7/th January, 1962 is forthcoming, with the result that the impugned older deserves to be upheld.

( 4 ) THE petitioner Rain Kumar has, it may be pointed out, also filed an application dated 31st October, 1967 seeking ameudment of the me morandum of the grounds of revision by adding a ground to the effect that without a valid notice under section 106, F. P. Act, the eviction application was not maintainable. At the bottom of this application, there is a note that if no revision is held to lie, then the same may be treated as a writ petition.

( 5 ) SHIR Bikramjit Nayar, the learned counsel for Ram Kumar, has cited the decision in Porur Mal v. Pram Nath, in which D. K. Mahajan, J. held that an older refusing to set aside an ex parte order in appealable and distinguished the decision in the case of south Asia In austries on the ground that in the earlier case it had been held as a fact by Gosain, J. that the impugned order appealed against, was not an order under the Rent Act Dulat and S. K Kaput JJ in The C nlrat Bank of India Ltd. v. Gokal Chand, considered the conflict in the decisions of the Punjab High Court and following the decision of the Subreme Court in Shankarl. lal Aggarwal v. Shank. lal Poddar, laid down that an order finally deciding the dispute between the parties -or depriying a party of a substantial and impottant right would be appealable. An order declining to issue a commission was, however, considered to be an older merely of a procedural nature not affecting the right- and Iiabililies of a party and, therefore, not appealable.

( 6 ) ASSUMING, as urged by Sbri Bikiamjit Navar that the impugned order of the Rent Controller dated 12th April, 1962 was appealable under section 38 of the Delhi Kent Control Act, the order of the Rent Control Tribunal dated 1st December, 1962 dismissing the appeal against the order dated 12th April, 1902 on the ground that no appeal was competent under section 38 of the Delhi Rent Control Act must also, in my view, be open to appeal in